County government in colonial North Carolina

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COUNTY GOVERNMENT IN COLONIAL NORTH CAROLINA

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THE UNIVERSITY OF NORTH CAROLINA

The James Sprunt Historical Publications

PUBLISHED UNDER THE DIRECTION OF

The North Carolina Historical Society

J. G. DE ROULHAC HAMILTON ) „,.
HENRY McGiLBERT WAGSTAFF )

VOL. 11 NO. 1

CONTENTS

County Government in Colonial North Carolina

CHAPEL HILL, N. C.

PUBLISHED BY THE UNIVERSITY

1911

CONTENTS

Introduction.

2.
Character of the Population.

3.
Land System.

4.
Absence of Local Institutions.

5.
The North Carolina County a Survival of the English System.

6.
The Creation of Counties.

7.
Local Administration of Justice prior to 1738.

8.
Changes in County Government of 1738.

9.
Local Administration of Justice from 1738 to 1776.

10.
County Officials.

11.
Evils in Local Government.

12.
County Representation in Assembly.

13.
Conclusion.

COUNTY GOVERNMENT

IN
COLONIAL NORTH CAROLINA

BY

WILLIAM CONRAD GUESS, A. B.

"No people can have a proper self respect who are not familiar
with the deeds of their ancestors". — Battle.

' 'This system imparts to the State the character of a confedera-
cy of counties". — McMahon.

"There are other places at which, like some of the foregoing,
the laws have said there shall be towns ; but nature has said there
shall not1 ' . — Jefferson .

COUNTY GOVERNMENT IN COLONIAL NORTH
CAROLINA.'

The proprietary government of North Carolina began in 1663,
with the royal grant to eight noblemen, who were constituted its
"true and absolute lords and proprietors," through royal favor,
and concluded in 1729, amidst public rejoicing, with the sale of
the property to the Crown. It was the purpose of the Lords Pro-
prietors to erect certain distinct governments, eight in number,
each one of which was to be directly dependent upon one of them,
and they termed these governments "counties." It was their
intention that these governments should be consolidated into an
imperial government, but the slow growth of the northern part
of the province prevented a consummation of their plan, and
finally brought about the division of the province into North and
South Carolina. In their concessions of 1665, they interpreted
the term "county" to refer to the subdivisions of their vast terri-
tory, which they had received, and it was their design that each
of these so-termed "counties" should have its governor, with the
necessary administrative associates and assembly. In the conces-
sions referred to, the proprietors spoke of the "County of Claren-
don, County of Albemarle, and the County of -
which latter is to be to the southward or westward of Cape Ro-
mania, all within the province aforesaid." Each was to be a
county palatine, rather than a county in the modern sense of the
term. Craven was the name attached to the territory blanked
in the concessions of the Lords Proprietors, and comprised the
territory immediately south of Cape Romania, wholly without
the region that later became North Carolina, and therefore is not
to be dealt with here. Clarendon, the district to the south of the
mouth of the Cape Fear, though within the territory of North
Carolina, was early abandoned that its inhabitants might unite

lrThis paper was awarded the first prize offered by the North Carolina
Society of Colonial Darnes of America for the year 1910-1911.

8 James Sprunt Historical Publications

with those of,Craven county a considerable time before there was
materialized in the units of either of these sections anything re-
sembling the county of the modern sense, the government of
which, prior to 1776, is the consideration of this inquiry.

The earliest successful municipal corporation in North Carolina
was Albemarle county, comprising the entire area around Albe-
marle Sound, some 1600 square miles. This government was at
first smaller than either Clarendon or Craven, but it steadily ex-
tended its domain over the surrounding territoiy, until at the
close of the 17th century it became known as North Carolina, and
embraced that part of the province that extends north and east
of the Cape Fear. The plan, as I have suggusted, was to have
very large counties, and these were to be composed of ' 'Pre-
cincts." Albemarle, and Bath, which was created in 1696 from
the region to the south of Albemarle, were the only counties of
this type which were created, the former being early composed of
the ''Precincts" Currituck, Pasquotank, Perquimans, Chowan.
Edgecomb and Bertie, and the latter of Beaufort, Hyde, Craven,
Carteret, New Hanover, Bladeii and Onslow. These counties,
with their "Precincts" which were to be the units of local gov-
ernment in North Carolina, along with the others that were sub-
sequently created along the same plan, continued to exist until
1738, when the larger division was abolished, and in its place the
old precinct, which now was denominated county, became the
regular local administrative and judicial unit.

THE CHARACTER OF THE POPULATION

That the correct importance and appreciation may be attached
to the local government in North Carolina, that its method may
be best understood, and accounted for, a brief survey of the type
of persons with which it dealt, their character and condition,
which will prepare us for the insight into their conception of jus-
tice and their methods of administering it — for the laws which
were enacted were characteristic of the men of the times — is not
improper here.

North Carolina certainly cannot be called a "Receptacle of
Dissenters and an Amsterdam of religion," as New England was,

County Government in Colonial North Carolina 9

It was no "Nursery of Quakers", as Pennsylvania; it was, to be
sure, no "Retirement of Catholics", as Maryland; it cannot, I
think, be peculiarly characterized as the "Delight of Buccaneers
and Pirates" as South Carolina is accused; it may in no sense of
the word be "justly esteemed the happy retreat of true Britons
and true Churchmen", as Virginia claims to have been; but it
cannot, I think, be justly termed the absolute "Refuge of Runa-
ways", as Jones characterizes it in his "Present State of Vir-
ginia". Nor do I think that the celebrated Colonel William Byrd
had sufficient justification for saying, that the inhabitants of the
province of North Carolina "pay no tribute either to God or to
Caesar." That both of these statements are partially true no one
denies; that they are merely half truths and nothing more, the
candid and impartial students of that period largely confess.
Bancroft says that North Carolina was settled by the freest of the
free; men to whom the restraints of other colonies were too se-
vere. The settlers of North Carolina were by no means a class of
people particularly fond of a rigid government, and they have
never been exuberant about the exactions of taxation, local or
otherwise. Lack of means partially accounts for the latter char-
acteristic. They were however, says Bancroft again, "gentle in
their tempers, of serene mind, enemies to violence and blood-
shed." They were "restless and turbulent in their very imper-
fect submission to government imposed upon them, but their
own administration was firm and tranquil."

The early settlers of the New England Colonies belonged to the
great middle class of Old England and came chiefly from the towns,
while the early colonists of Virginia, purely English, belonging
to the upper and middle classes of the mother country came in
the main from the rural districts, and brought with them a large
body of "servants,'7' who were sprung from the very lowest
classes of England. This approach to white slavery in Virginia
was abandoned with the introduction of negroes, but the poor
whites then occupied a condition of life scarcely preferable to
that of the slave. 1 he result was that in Virginia the upper class
grasped the reins of government at the start and held them,
while in New England, on the contrary, the mass of the people,

10 James Sprunt Historical Publications

from the very earliest time, seized the control of affairs, and in
that respect Carolina somewhat resembled New England . North
Carolina was settled by no distinctive class, however, as New
England and Virginia, but by a heterogeneous population, and thus
the local organization of Colonial North Carolina was of a mixed
character such as would naturally have been produced by the
manner of its settlement, and the character of its settlers.

Colonial North Carolina was often turbulent; whether justified
through good reasons or not, there were frequent social dis
orders among the people. The condition of the masses is partial-
ly responsible for this, for religious instruction was scant and
there was unfortunately considerably less of education . No print-
ing press was introduced into the colony until 1749, "without
the advancement of which" said Charles Dickens, in his speech
at a reception tendered him in New York in 1868, "little real ad-
vancement can take place anywhere." But coupled with this
condition of the masses, was the bad administration and the ex-
cessive demands of the mother country. In their submission (o
this the inhabitants were "restless and turbulent." Any govern^
ment but one of their own institution was rather oppressive.
Thus the county governments were more quiet and better regu-
lated, because the administration of local affairs was not so close-
ly subjected to a foreign sway, a fact which should be borne in
mind through a major part of the treatise, for local self-govern-
ment, though to be sure it only partially existed in Colonial
North Carolina and was precluded by the '"fundamental consti-
tutions," is conceived to be conducive to a liberty loving spirit .

LAND SYSTEM

Closely allied and firmly interwoven with the social and politi-
cal institutions of any government, local or otherwise, is its land
system. No people can properly find their place in the ranks of
government until they are settled within some definite area, have
a fixed abode, have acquired land, which they hold as the proper-
ty of individuals or which is held by the people as a whole.
Before a land system is developed, however simple it may be, a
people strong and numerous constitute scarcely more than

County Government in Colonial North Carolina 11

* 'a nomadic horde deserting one region after another." The
land system is one of the most important elements, almost the
fundamental principle of the institutional life of any country or
section, and its influence is particularly traceable in the history
of the English race. Local government in Colonial North Caro-
lina cannot, therefore, be properly studied without some investi-
gation into its land system.

The proprietors, being early empowered through their charters,
announced to those who would become North Carolina colonists,
the conditions under which they could obtain and hold land.
With a view of encouraging a rapid settlement special induce-
ments were offered to large families. In 1663, in their document
entitled "the declarations and proposal" the proprietors offered
one hundred acres of land to every "present undertaker," fifty
acres for every man servant, and thirty acres for every woman
servant whom he should bring or tend into the province. The
early lands were not sold, but leased forever, as it were, the pro-
prietors being compensated in the shape of quit rents. One half-
penny per acre was the amount established by the proprietors as
the quit rent, and from three to five years were allowed for its
payment. Lands were granted however during 1663 at lower
rates still, only one farthing per acre being exacted. These low
rates were aimed at attracting large numbers to Carolina, and
were unquestionably a distinct advantage to poor colonists.

In 1663, the proprietors reached a special agreement with the
unsuccessful settlers at Cape Fear. It provided that 500 acres of
land should be granted in return for every thousand pounds of
sugar which were subscribed toward the enterprise, and more or
less in proportion to the amount of the subscriptions. About the
same time, the Concession and Agreement of 1665 made provis-
ion for an elaborate system of head rights, varying considerably
between 1665 and the close of 1667, which were applicable for the
entire colony, including Clarendon. Within that county the
maximum for freemen was to be one hundred acres and the min-
imum fifty acres. It was provided that the larger amount was to
be bestowed upon those wno arrived in 1665, and the smaller on
those who delayed until 1667. In Albemarle, the maximum and
minimum offers were eighty and forty acres respectively.

12 James Sprunt Historical Publications

The Fundamental Constitutions, though they only designated
the areas of the baronial grants, were in the nature of an immense
territorial concession for the entire province. In the celebrated
scheme of government, there was provision for eight Seniories in
each county — each consisting of twelve thousand acres — and these
were to be proprietary reserves. The eight baronies in each coun-
ty were to be given, of course, to the provincial nobility. In
order that these estates might be kept together, it was provided
that after 1701 neither the proprietors nor the provincial nobles
should have the power of dividing their estates. It was permit-
ted that tracts of land consisting of twelve thousand acres might
be erected into manors. Thus the "Inalienable and Indivisible"
property of the nobility — which consisted in one landgrave or
earl, and two caciques or barons for each county — comprised
ninety thousand acres, or one fifth the entire land of the province.
The proprietors were to retain as their "Inalienable and Indivis-
ible" property a like amount of the lands. The remainder of the
territory, three-fifths of the entire amount, comprising some two
hundred and eighty-eight thousand acres, was reserved for what
was termed "the people." A very successful application of the
feudal land system set forth in the Fundamental Constitutions
fell flat, but merits attention as the only continued attempt with-
in the United States to connect political power with hereditary
wealth. Carolina, however, refused alike an hereditary nobility
and the dominion of wealth. It is interesting also for its partial
influence upon the proprietors in their early territorial system as
applied to the colonists, a system which was not, in its essence,
materially altered when the Crown purchased the territory from
the proprietors in 1729.

As a matter of fact, the land holdings granted by the patentees
to the common people were very small as early as 1669, for the
provisions of the Fundamental Constitutions were modified con-
considerably at that time, and although there were exceptions,
large grants were very rare. That policy continued on through
the colonial period. Six hundred and forty acres was usually the
maximum quantity, although the Assembly passed a law in 1669
which restricted, for five years land holdings to six hundred and

County Government in Colonial North Carolina 13

sixty acres. But, as has been shown, this law did not extend to
"Proprietors," "Land Graves," and "Caciques." The law was
early made in order to prevent dispersion of the inhabitants over
too large an area. The amount which one man could lay hold of
without purchase in 1669 was sixty acres for himself and fifty or
sixty acres for each person he brought with him. A little later it
was fifty acres for each person that came without any distinction.
In 1709 the Proprietors declared that no more than six hundred
and forty acres should be sold to one man without permission.
In 1702 the restriction allowed no more than five hundred acres,
though six hundred and forty acres seem to have been the usual
maximum holding permitted to one person from a little after that
date on through 1737, and thereafter, the policy of issuing small
grants under the Crown, as under patentees, being adhered to.
No inconsiderable man therefore, under the system of land hold-
ings, could accumulate anything approaching a very extensive
estate.

In 1665 the proprietors provided that "Registers or Secretarys
were to keep exact enterys in faire hookes of all publicke affares
of the said countyes and to avoid deceiptes and law suits shall re-
cord and enter all graunts of the Land howse or howses from man
to man, As also all leases for Land howse or howses ..."
This provision, now so common, was then unknown to English
law. It was a marked improvement on the [English system of
ascertaining and perpetuating titles. All grants and deeds for land
were to be acknowledged or proved by oath of two witnesses and
recorded, and the conveyance first recorded was to be effectual,
notwithstanding the prior unrecorded conveyance.

All the laws passed from time to time in regard to registration,
alienation, transfer, title by occupation, validity of occupation,
validity of patents, resurvey, escheat, rent-rolls, and the number
of acres to be granted to any one person, were enacted by the
governor, in cooperation with the two houses of the legislature.
The governor was empowered to exercise a very careful oversight
over tl>e settlement of all land granted. It was emphasized that
he should not allow larger grants than could be well settled and
cultivated and this was usually a very small amount. In con-

14 James Sprunt Historical Publications

junction with the council he decided whether lands had been set-
tled in accordance with the terms of the grants and whether they
escheated or forfeited, and he was forbidden to issue grants with-
out a clause reserving the right to vacate the occupants unless the
quit-rents were paid and cultivation properly carried on, but the
colonists were often excused for non-compliance with the regula-
tions. Subsequent provisions concerning the territorial system
were provided for when the occasion demanded, though they were
better planned than executed, for much looseness and even abuses
prevevailed. From 1729 however, when the Crown purchased
the territory, the abuses seem to have been less prevalent; though
the crown officers were not always very active or particularly in-
telligent in the discharge of their duties.

Thus it has been observed that under the patentees and the
Crown, the policy wns to grant the land in small holdings, and
this system and policy concerning land determined to a very con-
siderable extent the economic, political and social life of the col-
onists. The sytem of land holdings tended to keep North Caro-
lina a poor colony, while in Virginia and South Carolina, where
it was the custom to make large grants, a predominant landed
aristocracy soon sprang into existence. The North Carolina col-
onists did not escape the influence of the environment, and the
nature of the local government was, of course, materially influ-
enced by its territorial system — a system which tended to check
the colonists in the accumulation of wealth. The consequence of
a small and not wealthy population scattered over a large area
was that the county, or precinct, as originally designated, obtain-
ed predominance as a political unit.

ABSENCE OF LOCAL INSTITUTIONS.

Among all the American Colonies, town life was least developed
in North Carolina. With the absence of manufactures and with
commerce entirely undeveloped, and with a population without
wealth, towns would have been an unnatural growth. In early
North Carolina there were very few hamlets, and in certain local-
ities, a house within sight of another was rare. Amidst these
situations, in a boundless forest, there were not even roads, ex-

County Government in Colonial North Carolina 15

cept as the paths from house to house were distinguished by
notches on the trees. As late as 1754, North Carolina with twice
as many inhabitants as its southern neighbor, South Carolina, had
not one considerable village. Indeed in 1776 New Bern and
Wilmington were villages of only five or six hundred inhabitants
each . A town became entitled to a representative in the legisla-
ture when it was composed of sixty inhabitants, but even with
this slight requirement the number of towns represented in the
legislature never been me very great. This of course was to some
extent due to the fact that the governor was chary of granting
borough representation, but the population consisted merely of
small farmers, the climate being especially suited to a rural life.
Where such conditions prevailed, towns did not spring into being
at once, nor could men be "forced, bribed, nor persuaded to live
in them when founded." The circumstances which prevented
the development of town life, and consequently the institution of
town government, aided the growth of the county system in North
Carolina and caused it to prevail.

Towns were thus absent in colonial North Carolina, but more
than this, there were no territorial distinctions, such as the plan-
tation, hundred, township and district, as in certain of the other
colonies, though provisions were made for them in 1665. The
parish did not come into the colony until it was fairly settled, and
through the proprietary period it was without uniformity and not
fully established . In the small number of parishes in which
there were efforts to maintain the establishment, the sole civil
functions were to care for the poor and assess the local rate. The
vestry and church -wardens were clothed with the power to raise
money by poll -tax not exceeding five shillings in currency a tith-
able for these purposes. The former of these functions was not
particularly important, because the rich and almost inexhaustible
soil of the fertile sections along the rivers which had for ages been
preparing the soil for easy cultivation by the rich alluvial depos-
its, produced an abundance of food in the colony. The latter
function was usually confined to expenditure for religious pur-
poses, and this being poorly paid by Dissenters, it became little
more than a voluntary offering by the Established Church, The

16 James Sprunt Historical Publications

other significant function of the parish, the care of the highways,
was, a considerable time before the introduction of the civil par-
ish, confided to officers appointed by the precinct courts, and it
so remained. A law of the legislature of 1703 directed that the
church -ward ens should provide weights and measures for the use
of the precincts, together with "one fair and large book of com-
mon prayer.'" The "select vestry" of the proprietary period
and the "open vestry" of the roval period performed certain insig-
nificant functions, but in the main, other than the above, all local
matters were referred to the jurisdiction of the county govern-
ments, a fact which attaches more significance and interest to this
study. The climate, natural environment, land-system, and the
habits of life of the North Carolina colonists evolved the county
as the natural type of their local government.

THE NORTH CAROLINA COUNTY A SURVIVAL OF THE
ENGLISH SYSTEM.

County government in colonial North Carolina bears many
pointsfof resemblance to the English common law parish of the
sixteenth century, though the Carolina plan of local government
seems to have been much less fashioned according to the parish
idea than most of the American colonies, the local governments
in many of them being a distinct survival of the sixtepnth ren-
tury parish, as those of Virginia and even of Massachusetts.

It was an early idea of the Lords Proprietors that the large
divisions of Albemarle, Clarendon, and Bath should be institu-
tions similar to the county Palatine of Durham, but that idea, as
has been seen, was inapplicable to North Carolina. The early Pre-
cinct Courts in North Carolina, however, correspond very closely
to the Durham Halmote Courts. They were held entirely under
the control of the Proprietors, and had the same local jurisdiction
over the same tenant? of the Proprietors of the Government. The
Precinct CourtSjunquestionably bear marked resemblance to the
local courts in Durham, in composition as well as in jurisdiction.

Though the -local system of government in North Carolina
seems^to have resembled the English common law parish of the
sixteenth century, and the early courts to have been fashioned

County Government in Colonial North Carolina 17

after the Durham Halmote Courts, the county system was, how-
ever, probably a more distinct survival of the regular English
county than were the local systems in any of the American col-
onies. Though county government in colonial North Carolina
bore many traits of other influences, in essence it was the old Eng-
lish county in the New World.

THE CREATION OF COUNTIES.

Before a fairly minute study of the actual jurisdiction and oper-
ation of a county government is begun, it might be well to consid-
er rather briefly here the manner of the erection of the precincts
previous to 1736, and of the counties from that time to the close
of the colonial period. Counties are created for the convenience
of the people who reside in them, and were erected in North Car-
olina in accordance with the population in the particular districts
in the province. Unfortunately the rectangular construction of
the local units had not at that early day been conceived of, and
perhaps would have inconvenienced the people if it had, since the
population was widely scattered throughout a large area. The
counties were therefore erected in accord with the distribution of
the population and were fashioned largely by natural boundaries.

The manner of the erection of the precincts, and later of the
counties, occasioned many disputes, The first of significance
seems to have arisen with Governor Burrington in 1733. The
Assembly claimed that the governor and the council alone did not
have the right of creating new precincts. Burrington had a con-
troversy with two members of the council about this point and
succeeded in showing that, save in the case of one precinct form-
ed in 1722, all had been erected by the governor without the co-
operation of the legislature. By an act of 1715 the legislature
recognized as legal units of representation the precincts which
down to that time had been established by ordinances.

In 1754 Governor Dobbs was instructed to erect counties in the
southern and western part of the province whenever he and the
council deemed it fit. This was to be done by charters of incor-
poration which gave the counties the privilege of sending repre-
sentatives to the assembly, but with absolute disregard of the

18 James Sprunt Historical Publications

assembly itself. This right of the governor was denied by many
of the colonists, and for some time after his administration began,
Governor Dobbs was not enabled to carry out his intentions. In
1759~the council ordered that the governor issue a proclamation
to the effect that, upon the dissolution of the assembly elected at
that time, no writs of election c^uld be issued to the several coup-
ties unless they took out charters of incorporation from the
governor. After 1759 the right of representation apparently de-
pended upon the charters issued by the governor, and the colon-
ists at that time relinquished their claim in the matter.

The manner of the creation of the counties seems thus to have
remained largely unsettled. Controversies and disputes over the
question were frequent. The indications are that the precincts,
and later the counties, were erected by the governor and the
council with considerable disregard for the assemby, though that
plan was not strictly adhered to.

Since we have observed the general character of the population
of colonial North Carolina, have examined the land system which
determined to a very considerable extent the economic, political
and social life of the colonists, noted the absence of any important
territorial division save the county, taken a passing glance at
English local governments of which the North Carolina county is
a survival, and seen the manner in which counties were created
in North Carolina, we now reach the main object of this study
and turn to an examination of the actual operation of colonial
county government.

It will be remembered that in the introduction of this paper it
was seen that the large divisions which the proprietors were
pleased to term "counties" were abolished in 1738, and that the
precincts which composed them were at that date denominated
counties. Previous to that time the precincts fulfilled the local
function of government, and were the actual counties of the more
modern term. The operations of their government, therefore,
are the ones first to be examined.

LOCAL ADMINISTRATION OF JUSTICE PRIOR TO 1738.

The pivotal factor of the county administration in colonial
North Carojina was ti*e countv pourt. The judicial body that

County Government in Colonial North Carolina 19

constituted the local court administered certain duties, through
which supreme local importance became attached to them, and to
the institution in which they served. It is therefore proper to
speak of the origin of the local court system in North Carolina,
of the local administration of justice prior to 1738, and later of
the local administration of justice from 1738 to 1776.

According to the provisions of the Fundamental Constitutions
there was to be in each of the large counties a court consisting of
the sheriff and four justices, one for each precinct, and all were
to be commissioned by the Palatine's court. But that provision
was not thus early carried into execution. The earliest records of
a county court which have been preserved in North Carolina are
those of Perquimans precinct, which began in 1693. With this
date the actual operation of the county government properly
begins.

Among the powers of the Assembly, as provided in the "con-
cessions and Agreement" which were issued by the Carolina pro-
prietors in 1665, was that of constituting "all courts for their re-
spective Countyes, together with ye Lymitts, powers and jurisdic-
tion of ye said Courts." There was also a provision for the num-
ber of officers, their titles, fees, and perquisites, and penalties for
"breach of their severall respective dutyes and Trusts." Similar
instructions were repeated to the governor oi Albemarle, as the
governor of the province was known previous to the appela-
tion of "North Carolina," in 1667. These liberal intentions
were abandoned with the Fundamental Constitutions, and there
was provided for an elaborate judicial system to be established by
ordinance after the plan had been accepted. The acts of the first
assembly of Albemarle, that of January 1669, did not provide for
the establishmpnt of any courts, unless provisions for that end
were among the lost records. The court of the governor and
council in one of the records is referred to as existing, and it
probably constituted the sole court of the settlement. The in-
structions of 1670 to the governor and council of Albemarle em-
powered them to establish as many courts as they should deem
well until "Our Great Model of Government" could be put into
execution, A similar provision was made in the instruction to

20 James Sprunt Historical Publications

Governor Wilkinson in 1681. The instructions of 1685 provided
that the governor should appoint justices and hold courts as set
forth in the Constitutions. In 1691, Governor Ludwell was in-
structed, with the consent of three of the proprietors' deputies, to
appoint a judge and four justices to try cases in any of the coun-
ties in which there were fifty freeholders qualified to serve as
juries, with one justice for each precinct.

According to the Fundamental Constitutions, in every precinct
there was to be a court consisting of a "Steward" and four jus-
tices of the precinct, who were to judge in all "criminal crimes,"
except treason, murder, and any other offences punishable with
death, to judge furthermore all civil cases whatsoever, and all per-
sonal actions not exceeding fifty pounds sterling without appeal ,
but where the cause should exceed that value or concerned a title
to land, and in all criminal causes, in such cases, either party on
paying five pounds sterling to the proprietors' use, was given the
liberty to appeal to the County Court. It was provided that the
precinct courts should be held regularly in quarter sessions, and
that the governor should permit no delay of justice.

Such were the early provisions and arrangements concerning
the establishment of some type of local court system for the pro-
vince 0f North Carolina . The several provisions as to the governor,
and particularly those contained in the Fundamental Constitu-
tions were not readily placed in operation. The development of
the local courts underwent a slow, yet normal, development. Cer-
tainly there were no precinct courts in the old precincts of Car-
teret, Shaftesbury, and Berkely, of 1672, and so far as can be
ascertained there were none in any of the precincts which were
subsequently created, prior to the court of Perquimans precinct in
1693.

The precinct courts thus came into existence not later than 1693,
and probably prior to that date, though the records have been lost
if there were earlier courts. They were held by several justices
of the peace in joint session, who were appointed by the governor
with the approbation of the council, one of whom was usually
denominated Judge. Frequent sessions cf this court were held,
Perquimans having in 1703 seven in each year, although the

County Government in Colonial North Carolina 21

number in different precincts varied, the number of courts and
justices being influenced by the particular demands in the various
sections. As there were no court-houses in the province prior to
1722, the courts met at the private residence of some conveniently
situated planter. The scope of authority underwent many
changes from time to time.

The jurisdiction of the precinct courts as finally regulated, ex-
tended over criminal offences which were punishable by fines and
forfeitures, but not by the loss of life, limb or estate. They
could try civil causes which did not involve over a hundred
pounds except actions of ejectment. The court of the single jus-
tice disposed of all claims for less than fifty shillings. The pre-
cinct court was permitted to inflict punishment by * 'fines, ran-
soms, amercements, forfeitures or otherwise."

Similar to a board of commissioners at the present day, this
court had many non-judicial duties, administrating over many
matters of public concern. In the precinct courts, claims to
head rights were proved. They were also empowered to take
probate wills, receive entries of lands, when there was no dis-
pute, and grant letters of administration. Owing to the late in-
troduction of the parish, they performed many of the duties
which in England were in the hands of the vestry, and which in
New England were left to the selectmen. They fulfilled the
functions of the English Orphans' Courts, acting as appointed
guardians and binding children out as apprentices. They looked
after the general management, opening roads, building bridges
and appointing overseers of the public highways of the precinct,
a duty which, although it must have been particularly important,
was only slightly performed through the early period. Further-
more, the precinct court supervised the administration on es-
tates, appointed constables and granted franchises for mill sites.
As a matter of fact, they formed the chief center of local govern-
ment in North Carolina throughout the proprietary period.

The decrees of the precinct court were executed by an officer
called the provost- marshal 1, who was in fact merelv a sheriff pre-
vious to the time when that officer was dignified with the latter
term in 1738. He was a deputy of the provost-marshall of the

22 James Sprunt Historical Publications

General Court, and in general sustained the same relation to the
precinct courts as the latter did to the General Court. It was a
part of his duty to summon jurymen, but this officer will be dealt
with slightly more in detail in connection with the county
officials.

There was also a clerk, and briefly here, it was his duty to
keep and transcribe the minutes of the court. Interestingly, on
the last day of any session of the court the clerk was required to
read in open court the minutes of all the proceedings, and after
he had duly corrected all errors, and the document had been
signed by the justices, it was declared the record of the court.

There were, naturally, attorneys who took part in the trial of
cases, and in early proprietary times there was the custom of al-
lowing advocates, men not bred in the law and with absolutely no
knowlege of the elements of the law, to use the precinct courts as
a kind of practice ground. But after some time this practice was
interfered with through an order of the General Court forbidding
• ny person to act as attorn ey-at-law in the province except such
as had been licensed by the Chief Justice and Judges of the
Court.

In the precinct court, as in the higher tribunal, there were
juries in the trial of cases. By a law of 1679, the justices were
to make known to the "sheriff or marshall of the precinct that he
should cause to come before the court, to act as jurors, as many
good and lawful men of the precinct, by whom the truth may
there be better known and inquired of," etc. In 1723 the man-
ner of obtaining juries was described as follows : Lists were to be
made of jurymen in each precinct, and none could serve whose
names were not on the lists ; of these persons the sheriff was or-
dered to summon twenty-four, whose names were furnished to
him; he was to perform this duty twenty days before the meeting
of the court, and the persons summoned were bound under a pen-
alty to attend. On the opening of the court, the names of those
summoned were called, and if more than twelve appeared, the
names of all those who were present were put into a box and a
child under twelve years of age drew from the box, in open court,
the names of twelve, who constituted the jury for that term. If

County Government in Colonial North Carolina 23

in any case to be tried any of these were challenged, then a child
drew as before from the remaining names of the original twenty-
four to supply their places. If, at the opening of the term, there
did not appear enough of those summoned to make a jury of
twelve, then the court ordered the sheriff or the marshal to sum-
mon "talesmen," who, of course, could be taken from the free-
holders only, whose names were on the jury list of the precinct,
and who happened to be at the court. When a person had once
been drawn and had served as a juror for a term, he could not
again be required until all the others on the list, who had not at
that time served , had been drawn .

Mention was made in the outline of the jurisdiction of the pre-
cinct courts that a single justice had jurisdiction in civil cases
which did not extend to cases involving more than forty shil-
lings, and this action along with the observance that law and or-
der be kept, about which they were to report, might be specified
as the Justice of the Peace Court. The first record that we have
of this court was likewise in Perquimans County in 1678, previous
to the extant records of the precinct courts, although the Justice
of the Peace Court seems to have been merely a minor division of
the precinct court.

These magistrates were given quite an extended range in which
to display magisterial powers, for in the enumerated powers con-
ferring jurisdiction upon the justices in 1676, it was enacted that
they should be authorized ''to enquire of the goodmen of the pre-
cinct, by whom the truth may be known, of all felonies, witch-
crafts, enchantments, sorceries, magic arts, trespasses, forestall-
ings, regratings, and extortions whatsoever." The only jurisdic-
tion of the justice which ever became particularly significant in
the province, however, was his usual jurisdiction in civil causes
which did not extend to cases involving more than forty shillings,
that is when acting alone.

These magistrates, as was observed in speaking of them as jus-
tices of the precinct courts, were appointed by the governor with
the approbation of the council. This was usually conceded, for a
later enactment boldly affirms that "it has always been the cus-

24 James Sprunt Historical Publications

torn, time out of mind, for the Governor and Commander-in-chief
to appoint all officers in this government, by and with the consent
of the major part of the council."

The executive officer of this court was the constable who was
annually appointed by the precinct courts, nnd in the main was
invested with powers very similar to those of a constable in Eng-
land. Besides those regular duties, they made lists of the tith-
ables for the use of the vestry and summoned the coroner's jury.

There was an extra local tribunal of which it is proper to speak
in brief, namely the court for the speedy trial of slaves. The pur-
pose of the court was that the owner might not, by the confine-
ment of the slave until the next court, lose the benefit of his labor.
This court was composed of three justices of the precinct in which
the charged crime was committed, along with three free-holders
of thp same precinct, who wero required to be owners of slaves.
The court convened at a place named by a justice whose commis-
sion was the oldest of the three, and the trial was conducted ac-
cording to the sam« rules of procedure as were in vogue in the
other courts, excepting that there was no jury, the court deter-
mining the facts as well as the law. The slave was allowed to in-
troduce any lawful evidence in his defense, and was not prohibit-
ed by th* law from having the assistance of his master or others
employed for him. After a hearing, the court could pass sen-
tence, extending to life or member, or might in their own discre-
tion inflict any corporal punishment whatsoever or command the
proper officials to execute the sentence for them.

Such were the inferior courts of colonial North Carolina pre-
vious to 1738. They were not always particularly effective as
judicial tribunals, and yet from the records one is prone to be-
lieve that they were fairly satisfactory considering those austere
times, dealing with a populatfon that had already acquired the
reputation of being very lawless, resisting constituted authority,
and above all things endeavoring to pay little or no taxes, though
this condition is in itself somewhat reflective on the judicial sys-
tem in general of that time. Fiske says that in the administra-
tion of justice "one might have witnessed such scenes as contin-
ued for generations to characterize American frontier life. The

County Government in Colonial North Carolina^ 25

courts sat oftentimes in taverns, where the tedium of business was
relieved by glasses of grog, while the justices' decisions were not
put on record, but were simply shouted by the crier from the inn
door or at the nearest market place."

CHANGES IN COUNTY GOVERNMENT OF 1738.

As has often been referred to in this paper, in 1738 the great
counties of Albemarle and Bath, which, be it remembered, were
not counties of the modern term, with their marshals, deputy
marshals, and separate courts, through an act passed "by his
Excellency Governor Gabriel Johnson, Esquire, Governor by and
with the consent of His Majesty's' Council, and the General As-
sembly of this province" were abolished, and the precincts, which
had throughout this period largely fulfilled the functions of
counties, were now dignified by the appellation. The change be-
came agitated through neglect on the part of the deputies, who at
that time refused to perform their duties. Their conduct in many
other respects occasioned ' 'great murmurs, discontents and a de-
lay of justice, greatly injurious to the tranquility of the pro-
vince." These evils were partially remedied through the aboli-
tion of the office of provost-marshal of the province, and by di-
recting a sheriff to be appointed in the newly created counties to
serve instead of the ordinary deputies of the provost -marshal.
Three justices of the peace in each county were to be recommend-
ed bi-ennially to the governor by the court of the county, who
were to be most "fit and able to execute the office of Sheriff for
their respective counties." The governor appointed the one that
seemed to him "meet for the office," and he was to serve the
next two ensuing years. The same act that changed the name
"precinct" to "county" naturally changed the old precinct courts
to county courts, but their organizations and functions remained
for some years the same in essence as they had been.

After the act of 1738 changed the precincts into counties,
through many subsequent acts the newly created counties under-
went many divisions and alterations, others were erected from
them, "and the boundaries were settled and altered from time
to time as were most suitable to the circumstances of the inhab-
itants."

26 James Sprunt Historical Publications

LOCAL ADMINISTRATION OF JUSTICE FROM
1738 TO 1776.

The policy of the patentees in the local judicial system was per-
mitted to continue^ until 1746. The most significant factor of
local government, the county court, was then reorganized, as was
the superior court. By the act of 1746 the precinct or county
courts were much more fully organized. "For the better estab-
lishment of the County Courts" it was enacted that they should
be held four times in each year, and that the justices of the peace
" shall have power and authority, as amply, and fully, to all in-
tents and purposes as the Justices of the Peace in the counties of
England as well out of their Court of Quarter Sessions, as within,
to preserve, maintain, and keep the peace within their respective
counties." Four sessions yearly were to be held in each county
by three justices of the peace who were now as in the previous
period appointed by the governor with the approbation of the
council. The justices of the peace, when in session, had the
power of hearing and deciding all matters in law wherein the
amount in litigation was above forty shillings and not more than
twenty pounds, acts of "trespass and ejectment and writs of for-
medom being excepted." These officers likewise heard "petty
larcenies, assaults, batteries, trespasses, breaches of the peace, and
any other offences of an inferior nature, forgery and perjury
being excepted." They were furthermore to hear all cases
of legacy, intestate estates and matters concerning orphans.
There was a provision made for appeals from this court to the
superior court. The prosecuting officer in these county courts
was a deputy of the attorney -general of the colony, the deputy
for each county receiving his appointment from the attorney-
general.

Through an act of 1754, the assembly defined the powers and
duties of the Court of Quarter Sessions, and enlarged its jurisdic-
tion. This act, however, was repealed by the Crown. The local
sessions were almost entirely under the control of the provincial
officers, especially of the legislature, and to extend their jurisdic-
tion meant further limitation of the superior courts which were
more directly under the Crown. The repeal of the act of 1754

County Government in Colonial North Carolina 27

was not sufficient to check the legislature, for in 1760 another act
was passed extending the jurisdiction of the inferior courts to
cases involving fifty pounds. This act was likewise repealed, but
after it had operated for a short time. The assembly soon relin-
quished its demands, and passed in 1762 an act which limited
the jurisdiction of inferior sessions to twenty pounds, although
it passed at the same time an act providing for a trial by this in-
ferior tribunal of the cases involving as miach as fifty pounds,
which had been begun but not completed according to the act of
1760. The provisions of the act of 1762 were continued, though
very slightly modified through the acts of 1764 and 1768. In
1773 the question of extending the jurisdiction of the lower courts
again arose. After many disputes between the lower house and
the governor, an act was again passed providing that the inferior
courts should have jurisdiction in cases involving amounts as
large as fifty pounds. Governor Martin through force of condi-
tions, gave assent to the act, bui it received the ordinary fate with
the Crown, being repealed. The Crown replied that it was will-
ing to allow the officers of the court to be appointed by the pro-
vincial officials, that their powers, duties, and methods of pro-
cedure be defined by the assembly, that the session might be
practically independent of the Crown, but this independence must
be within small limits.

Below the County Court of Quarter Sessions there was, in the
precinct court, a still smaller court, the court of one or two mag-
istrates, the lowest court of the judicial department. This session
of the magistrates, as we have seen in connection with the pre-
cinct courts, was one of the very oldest of the provincial courts.
It continued throughout the royal period with practically the
same jurisdiction as was granted it by the patentees, being pro-
vided for in the royal period by an act of 1741. Each county
had several magistrates, appointed by the governor in conjunction
with the council, having jurisdiction in actions of smaller amounts
than those prescribed for the regular inferior sessions, anB like-
wise had much to do in keeping the peace and in administering
justice in general in an elemementary way. The executive of
this court was the constable, as in the previous period.

Observations of the precinct and county courts indicate that

28 James Sprunt Historical Publications

they were in essence the same, few changes of significance being
made in the local court system after 1738, though many consid-
erably important ones were agitated. The county courts were
more fully organized than the previous ones, naturally growing
with the development of the population. Both courts were held
by the justices f>f the peace, the decrees of the precinct court be-
ing executed by an officer called the provost-marshal, while the
decrees of the latter courts were executed by a like officer under
the cognomen of sheriff. There was the officer of clerk in both
systems, with like duties in each, though he was constituted dif-
ferently under the Fatter system, and was later enticed to fraudu-
lent extortions. The court of the magistrate in the precinct
court was very similar to a corresponding court of the latter
period, the executive officer in each being a constable. Attorn -
eys-at-law practiced in the county court as well as in the former
system. The services of a jury were, of course, as essential to the
later as to the earlier tribunal. The extra local court for the
speedy trial of slaves existed in the local judicial system after
1738, and was perhaps a court of more activity during those
later times. It is therefore justifiable to say that in essence
the local court system of the patentees continued through the
colonial period, though there were many slight alterations.

The great weakness of the court system of colonial North Caro-
lina was its instability, though the local courts were never sub-
jected to the severe alterations that the superior courts under-
went. The court laws were usually temporary and on account of
political disputes between the Assembly and the governor, their
existence was usually limited to a specified time, usually two
years. This led to much legislation with its consequent agita-
tion and discussions regarding courts and court systems. The
courts were frequently modified, and this, through contentions
and controversies between the different parties, allowed the pos-
sibility of having no courts at all. In a few instances the single
court of activity in the province was the justice of the peace court .
That the system and administration of justice should under the
conditions be rather inefficient, and even at times chaotic, was
perfectly natural. It cannot be denied that a lack of intelligence
and energy on the part of the representatives of the colonists

County Government in Colonial North Carolina 29

often occasioned the absence of justice, but this is likewise attrib-
utable to a lack of intelligence in many instances on the part of
the Crown, and to a lack of intelligence, industry, and character
on the part of the Crown officials in the province. In 1768, dur-
ing the closing years of Governor Tryon's administration, the court
question was again taken up, and, while the general features were
left unaltered, the duration of the same was extended to five years
instead of two, a^ formerly, and this in itself greatly remedied
the judicial system. That act constitutes the last significant
change in the court system of colonial North Carolina.

COUNTY OFFICIALS.

The county officials of significance in colonial North Carolina
comprised the sheriffs, justices of the peace, clerks, registers,
treasurers, constables, and coroners. Nearly all the legislation
relating to the county refers to the county courts or to the sheriffs
as their executive officers. Whatever records of the counties have
been preserved are mainly county court records. Most of the
above named officers, it will be observed, were purely officers of
the local court system, and most of the others were closely allied
with it. In dealing with the inferior courts it was necessary to
say something of the court officers in that connection, and thus
we gained an insight into their duties then, and therefore they will
not be dealt with in much detail here, though it should be re-
membered that they constituted perhaps the most important
officers of the local system of government.

The most important officer of the county system was the sher-
iff, his principal services being connected with the county court.
He was the ministerial officer of the county. Previous to 1738, this
officer, as has been suggested, was called marshal, but at that
date the title was changed. He secured his office through ap
pointment by the governor, and was a freeholder residing in the
county, and had to "find surety for one thousand ponnd* sterling
that he should faithfully discharge the duties of that office and
account for and pay all publickand private moneys by him re-
ceived a,s sheriff." The sheriff served and executed all writs
issued in the name of the king, "of whatever nature they are,
gainst persons, lands and goods in the county and made returns

30 Jamfs Sprunt Historical Publication*

of those writs." For serving and executing all writs the sheriff
was allowed certain fees by an act of 1748, and for "all sales he
had a commission not exceeding two and one half percent, of six-
pence in the pound of the price of the goods sold, and for all pub-
lick moneys by him received he had a commission of eight per-
cent, allowed him." The sheriff's duties varied from time to
time, but in the main they were similar to the duties of the sher-
iffs of the English shires. Every county of North Carolina had a
sheriff, an officer of "trust and importance in the county," though
at times one sheriff would be changed to perform duties in another
county. He was amenable to the governor and received his in-
structions from him. The earliest duties performed by him were
serving writs and processes. He had custody of the county jail,
imprisoned criminals and inflicted corporal punishment and at-
tended executions. He held the elections for burgesses and sum-
moned juries for the inferior and General Court. He was also
the collector of public duties, and until coroners were appointed,
he was obliged to view dead bodies and "warn the enquest."
For some time his duties remained as above outlined except that
he was relieved from acting as coroner.

Possibly the most important duty of the sheriff was as the col-
lector of public duties, in the performance of which he was often
subjected to severe treatment by the delinquents. The sheriff was
furnished with a list of all the taxables in the county, "that is all
the white males above sixteen years of age and all mulatoes, mas-
ters and slaves male and female above the age of twelve, and by
this list he collected all the public or provincial poll." The
sheriff was empowered to collect the poll tax by an act of the
assembly with the county tax which was imposed by the justices
of the peace and the inferior court "upon their several counties
for contingent charges," and the parish tax which was imposed
by "the vestry for the behoof of the minister and other parish
charges." This officer had the power of "distraining for all these
taxes and a fee of two shillings and eight pence currency for every
distress."

Such were the duties of the county sheriffs of colonial North
Carolina. The same person could be elected and continue in
pffice fpr an indefinite nuinber of years, with one Umitation,

County Government in Colonial North Carolina 31

namely, that at the expiration of two years of service, if he could
show certificates or receipts from the treasurer "by which it
might appear that he had settled with that office for the puhlick
taxes by him collected in his county," he was discontinued as
sheriff.

Justices were early appointed by the governor and council of
North Carolina to serve for life or during good behavior, and
when any important county business was to be transacted, such
as levying taxes, electing county officers, accepting their bonds,
and making contracts for the county, a majority of the justices
were required to be present. Other business could be transacted
by a majority of the justices.

The office of justice of the peace had its origin in ancient times,
and in colonial North Carolina was regarded as a dignified, hon-
orable, and important position, and our forefathers felt highly
honored when clothed with its dignified and important powers.
Peace is the very end and foundation of civil society, and in the
maintainance of this the justice of the peace was an indispensable
officer in the administration of justice and orderly enforcement of
the laws.

At common law a justice of the peace had the power, when a
felony or breach of the peace had been committed in his pres-
ence, to personally arrest the offender, or command others to do
so, and had the same power to prevent a breach of the peace,
which was about to take peace in his presence. If, however, the
crime was not committed in the presence of the justice, he could
not arrest or order an arrest, except by his written warrant based
upon oath or affirmation.

The justice or the magistrate was the king's main reliance for
the preservation of order, and in colonial America he was the
principal officer in the administration of the laws of organized
local society.

As in the precinct courts, so in the county courts there were
demands for a clerk, and this officer existed in each of those tri-
bunals, receiving his appointment from the secretary ot the pro-
vince previous to 1762, and serving during good behavior. In
1762 a clerk for the province was appointed by the Crown, and
this officer thereafter appointed the clerks of the countv courts,

32 James Sprunt H-istoriral Publications

Evidence seems to substantiate the claim that by appointing
clerks for good conduct the clerk of the Pleas of the Crown re-
ceived a considerable sum of money in the shape of a bonus.
These county clerks were under bond to the justices of the peace
of the counties, but seem to have been more amenable to the
clerk of the province than to the magistrate, since their offices
more particularly resided there.

In connection with the land system in North Carolina we saw
that registers were created "to keep exact enteryes in faire bookes
of all publicke affaires of the said countyes," etc. The office of
the register thus came into existence almost with the colony. A
law of 1715 provided that the officer should be appointed by the
governor from three freeholders who should previously have been
selected by the voters in the precinct. There was thus at first
a popular element in the selection of registers, but later they were
appointed by the governor without previous nomination. The
duties of the register were registering deeds, which were often for
personality, and were acknowledged in the precinct courts, and
until the appointment of parish clerks, the recording of births,
marriages, and deaths.

Treasurers were not early provided for in North Carolina, the
first bill that I have been able to find in the records establishing
that office being dated 1746. The treasurers were, by law, to
account with the assembly, and the constant practice was for
them to do so before a committee appointed by the house, wl>o
re-examined the accounts on the report of their committees.
Their duties were very similar to those of the county treasurer of
the present day, though serving in territories where the popu-
lation entertained no great love for taxation it seems to have
been an office of much less activity than even at the present time.

The office of constable was another important office in colonial
North Carolina, ! though that statement may seem somewhat
strange to us now. The office originated in the most remote
days of the past and was early introduced into North Carolina.
The constable was then, as now, the ministerial officer of the jus-
tice's court. He acted when commanded by the justice, if acting
within his jurisdiction.

County Government in Colonial North Carolina 33

The concessions of 1665 provided for coroners. At that time
the officers were appointed by the governor and the council, and
a law, which Governor Burrington declared an old one, would
indicate that this method was retained throughout the proprietary
period, and probably they were so selected afterwards. The office
of coroner seems to have been one of inactivity during the early
days. The slight mention of the holders of this office in the rec-
ords would indicate that their services were never particularly
significant.

EVILS IN LOCAL GOVERNMENT.

In the description of the county officers it has been seen that
the magistrates, sheriffs, and constables were largely appointed
by the governor, usually in conjunction with the council, but the
members of that body were themselves selected by the governor.
The clerks of the county courts and register of deeds were selected
by an officer called the Clerk of the pleas, who having bought
his office in England came to North Carolina and peddled out
"county rights" at prices ranging from four to forty pounds
annual rent per county. In 1772 these rents amounted to five
hundred and sixty pounds per year "from an absolutely sinecure
office," as Governor Martin said. It was a vested right, how-
ever. All this was done openly, for "farming out offices," as
buying and selling them was called, was at that time an honor-
able occupation. Under that system, there was of course no re-
sponsibility to people, and an unhealthy state of affairs was soon
produced. There came to be a self-perpetuating circle, composed
of officers, lawyers, justices, and their dependents, controlling
local affairs, and with interest widely different from those of the
people. Popular discontent could not make itself felt in legal and
accustomed channels.

As a result of the foregoing situation, the unlawful extortions
of the county officials, and the non-performance of their duties
were their characteristic traits towards the close of the colonial
government. The first and perhaps primary cause of the War
of Regulation was the unlawful exactions of fees by clerks and
registers of deeds. There is plenary proof that the county official^

34 James Sprunt Historical Pubications

made undue extortions. Governor Tryon in his dispatch to the
home government in 1768, confessed that the Register and Clerk
of Orange had been found guilty of taking "too high fees."
Colonel Fanning, the Register of Deeds of Orange, was prose-
cuted and duly convicted, and fined a penny and costs. The
records do not show that he was ever subjected to any sentence
whatever. As it was with the Register of Deeds, so it was with
the Clerk of the Court and the Sheriff and his deputies, and as it
was in Orange, so it was in Anson, Rowan, Mecklenburg, and
various of the other counties.

Tryon himself said that, from various causes, partly from the
embezzlement jf the sheriffs, not more than one-third the tax
levied was paid to the public treasury. The defalcation of the
sheriff -? occurred for many years, so that the total indebtedness
of the various ones in the several counties amounted to more than
sixty-four thousand pounds in 1770. In every county there were
defalcations on the part of the sheriff or one of his deputies, and
in most instances, on the part of more than one. It was a har-
vest time in general for county officials — a time for court-house
rings and co'irt-house cliques.

The grievances were further hightened in communities where
almost all debts were small by the manner of collecting them.
Under the law at that time, all sums over forty shillings were
sued for and recorded in courts of record, thereby creating an
immense business for the minor courts with clerk's fees and other
costs corresponding, so that the extortion of county officials, as
Judge Haywood said, "fell with intolerable weight upon the peo-
ple." This was undoubtedly true, for in one case on record,
the cost equalled fourteen times the amount involved.

Of the thirty-four county court clerks in 1772, only eight or
nine had complied with the outstanding requirement to furnish
the governor with a table of their fees, accompanied by a certifi-
cate that such tables were put up in their respective offices.
Treasurers failed to account with the assembly. The sheriffs con-
fessed that they had observed several deficiencies in their collec-
tions, but they added that "in the confused state of the province,
from the turbulent dispositions of factions, cabals and dangerous
insurrections, it could not with reason be supposed that sheriffs,

County Government in Colonial North Carolina 35

more than magistrates and other officers could fully discharge
their functions." Temptation to irresponsible corruption was
the rule and not the exception in every office, and as a matter of
course, "Corruption stalked abroad throughout the land, uncon-
cealed, unawed and unabashed."

The first formal complaint was made in June, 1765, in the
famous Nutbush paper of Granville County, This paper set forth
the grievances under which the people professed to labor. It
complained of illegal exactions of lawyers and clerks, and de-
clared that "few of you have not felt the weight of these iron
fists." Fuller complaints were made in Orange and Anson in
1766. Protests were sent to the Assembly, but there was no re-
dress of grievances. That these grievances were real and not
imaginary no one denies. The mild protests of 1766 and 1767
went unheeded and the era of force and threats began . The
sheriff was warned that any effort to collect tax would be at his
peril. He did not heed the warning and seized a mare, bridle,
and saddle for taxes and was subjected to severe punishment for
his action .

The unhealthy situation, with no redress of grievances for the
oppressed, resulted in the War of the Regulation, which culmi-
nated in the battle of Alamance. The local benefits which result-
ed from the revolt were the regulation of attorneys' fees, the
directing of sheriffs in levying taxes, inferior courts were author-
ized to eotablish tobacco ware-houses wherever needed, county
officers of importance were placed under bond, and provision was
made for a more speedy and cheaper collection of small debts.
These improvements came during the last years of colonial gov-
ernment. Soon there was to be a more significant revolt; the
Royal Governor. Martin, was to "seek refuge on the Wilmington
sloop-of-war, " and saner provisions of government were to be
enacted.

Having seen the character of the population, the land system,
the local administration of justice, the county officials and their
fraudulent extortions, there remains but one other significant
point in the county government of colonial North Carolina,
namely, the representation of the county in the Assembly.

36 James Sprunt Historical Pubwations

COUNTY REPRESENTATION IN ASSEMBLY

When Bath County was erected, it was with the provision that
the precincts of the territory could send only two members each
to the legislature, while those of Albemarle were allowed five
each, and from this early difference in representation, though at
first the precincts of Albemarle were much larger and much more
populous than those of Bath, there grew up a system of unequal
representation which was ever thereafter a subject of frequent dis-
putes and controversies. The system became a gross injustice to
the large and populous western counties, and contention was not
out of order.

Representatives were voted for by "all freemen," the qualifica-
tions required from the electors being a freehold of fifty acres,
and six months residence in the county. Foreigners born out of
the king's allegiance and not "made free," (presumably natural-
ized) "negroes, Mulattoes, mustees, and Indians," were not al-
lowed to vote. Every voter, then as now, was required to be
twenty-one years of age. The elected were required to have a
freehold of one hundred acres and to have been for twelve months
a resident of the county.

The earliest elections in North Carolina are interesting enough.
The sheriff presided and took the vote which the freeholders cast,
and those who were absent from the polls were liable to be fined.
"All voted openly and aloud without the intervention of the
speaking ballot. The candidates sat on the magistrate's bench
above. The sheriff stood at the clerk's table below; called every
voter to come and how he voted. The favorite candidate invari-
ably bowed to the friend who gave him his vote, and sometimes
thanked him in words. All over the house were men with pens
and blank paper, who kept tally, nnd could at any moment tell
the vote that each candidate had received. . . . The election
over and the result proclaimed by the sheriff, forthwith the suc-
cessful candidates were snatched up, hoisted each one on the
shoulders of two stalwart fellows, with two mo^e behind to steady
him, and carried thus to the tavern . . . where there was a
free treat for all at the candidate's charge."

County Government in doonial North Carolina 37

Later every voter was required to vote by ballot, signed with
his name, and the returning officer was authorized to question the
voter upon his oath whenever he doubted his qualifications or sus-
pected him of having previously voted elsewhere. Whenever the
returning officer knowingly received an illegal vote, he was liable
to pay, first a fine of twenty pounds to the governor to be applied
in building a court-house, church or chapel somewhere in the
province, as the governor might direct; secondly he was answer-
able in damage to a like amount, recoverable by an action at law
in any court of record, "at the suit of any person who by a ma-
jority of votes ought to have been returned . ' '

CONCLUSION

The climate, natural environment, land system, and the habits
of life of North Carolina colonists evolved the county as the nat-
ural type of their local government, of which the county court
was the pivotal factor. County government in colonial North
Carolina has been studied thus minutely inasmuch as through a
correct understanding of the system of local government, the sys-
tem in the administration of which the people were the least
checked by the mother country, we learn their methods of admin
istering justice, get an insight into their methods of government
and their conception of justice, and thus the character of our
forefathers is visualized to us. Dr Battle is probably correct when
he says that no people can have the best "self respect who are not
familiar with the deeds of their ancestors." This inquiry has
been made with that thought constantly in mind. The county
system of ante-Revolutionary North Carolina has been studied
thus in detail, furthermore, in view of the fact that it served par-
tially as a model, though considerably less than either Virginia or
Massachusetts, for similar institutions in the South and South-
west.

Tn this system of government, the dominant idea was gradation
of power from the governor downward, not upward from the peo-
ple. There seems to have been centralization in government but
decentralization in other things. The necessary tendency to
strong centralization was often counteracted, however, by the

38 James Sprunt Historical Publications

individuality of local offices. But the system offered many loop-
holes for corruption and possessed absolute evils. There WAS no
responsibility to the people, and in view of thafc significant fact,
it is not remarkable to find ma«y instances recorded; of malfeas-
ance in office. Considerable changes have been introduced in the
county system of North Carolina since the Revolution ; but so
long as North Carolina remains primarily an agricultural state so
long will her local political life be moulded' upon the plan which
has prevailed for more than two centuries.

County Governme'nt. in Colonial North Carolina 39

SOURCES

In the preparation of this paper, I have made constant use of
the recent History of North Carolina by S. A Ashe, and of the
Colonial Records, as sources. I have investigated all of the his-
tories of North Carolina in the Lihrary of the University of North
Carolina, in fart, hut I have checked the statements that I have
gotten from the older of these works with the Colonial Records. I
have found Dr. Raper's work on English Colonial Government
particularly valuable. In dealing with the period prior to the
War of Regulation, articles of Bassett, Connor, Sikes, and Weeks
have been found very helpful. For specific purposes the works
on the local institutions in early Virginia, Maryland, and the
New England Colonies have been investigated.

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